Shields, J.c.c. (temporarily assigned).
This is a personal injury action instituted on behalf of Virginia Ronayne Knight, an infant, by her guardian ad litem William C. Knight, and by William C. Knight individually, for injuries sustained on or about July 19, 1965 at the San Jacinto Club in Allendale, New Jersey. The club is also a defendant.
While swimming in the pool infant plaintiff was injured when defendant Stephen Longstaff dove, fell or jumped upon her from a diving board. Longstaff is a resident of Illinois, his sole contact with this State being his visit in July 1965, at which time the accident occurred.
As a defense defendant asserts lack of jurisdiction, insufficiency of process and insufficiency of service of process. Plaintiffs move to strike these defenses under R.R. 4:12-4. This opinion is a determination of that motion.
Art. VI, Sec. II, par. 3 of the 1947 New Jersey Constitution provides that:
"The Supreme Court shall make rules governing the administration of all courts in the State and, subject to law, the practice and procedure in all such courts."
Acting under this constitutional mandate the Supreme Court promulgated R.R. 4:4-4(j):
"Whenever it shall appear by affidavit of the attorney for the plaintiff or of any person having knowledge of the facts, that, after diligent inquiry and effort, an individual cannot be served in this State under any of the preceding paragraphs of this rule, then, consistent with due process of law, service may be made by mailing, registered mail, return receipt requested, a copy of the summons and complaint to the individual addressed to his dwelling house or usual place of abode."
The affidavit required by the rule has been filed with this court. The question to be resolved is whether R.R. 4:4-4(j) applies to a nonresident defendant whose only contact with the State of New Jersey is an alleged tortious act committed here.
"Every variety of in personam authority over nonresident individuals which the United States Supreme Court will not reject as an excess of constitutional due process" has been vested in the courts of this State upon compliance with the provisions of the aforementioned rule. Schnitzer and Wildstein, New Jersey Rules Service, Special Release No. 4 (1963), p. 19.
While there has not been an appellate court opinion dealing specifically with R.R. 4:4-4(j), there has been a definitive statement by the Appellate Division on R.R. 4:4-4(d), the companion subsection to (j). Subsection (d) authorizes service upon a foreign corporation "subject to due process of law." Subsection (j) provides for service upon nonresident defendants "consistent with due process." The limitations of both sections are coextensive, and it therefore appears that the Appellate Division's expression of the limitations of (d) are applicable to (j).
" R.R. 4:4-4(d) permits extra territorial service subject only to 'due process of law' -- that is, to the outermost limitations permitted by the Federal Constitution. Our rule contains no definitions, limitations or exceptions. * * * To paraphrase a popular song, anything any state can do under the Federal Constitution we can do, and if a state is limited by the terms of its statutes or rules, we can do it better. Hence, we do not need to struggle with the oft difficult problems of statutory construction faced by courts ...